[Congressional Record Volume 153, Number 107 (Friday, June 29, 2007)]
[Senate]
[Pages S8745-S8748]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KYL:
  S. 1749. A bill to amend the Federal Rules of Criminal Procedure to 
provide

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adequate protection to the rights of crime victims, and for other 
purposes; to the Committee on the Judiciary.
  Mr. KYL. Mr. President, I rise to introduce The Crime Victims' Rights 
Rules Act, which would continue the work started in The Scott Campbell, 
Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime 
Victims' Rights Act.
  The bill would make comprehensive procedural changes to the Federal 
Rules of Criminal Procedure to protect crime victims' rights throughout 
the federal criminal process, thereby guaranteeing that crime victims' 
rights will be fully respected in our federal courts.
  As one of the Senate sponsors of the CVRA, I know that Congress 
intended the Act to bring dramatic changes to the way that the federal 
courts treat crime victims. Fortunately, in the two-and-a-half years 
since that legislation became law, positive strides have been made for 
crime victims. For example, with funding provided by act, the National 
Crime Victims Law Institute has been able to support crime victims' 
legal clinics around the country. I am also encouraged that court 
decisions have recognized the importance of crime victims' rights in 
the process.
  But while progress has been made in implementing the CVRA, at least 
one important step remains to be taken: The Federal Rules of Criminal 
Procedure must be comprehensively amended to recognize the rights of 
crime victims throughout the process.
  The Federal rules have been described as ``the playbook'' for Federal 
judges, prosecutors, and defense attorneys. Currently, the Federal 
rules make virtually no mention of crime victims. If crime victims are 
to fully integrated into the daily workings of our criminal justice 
process, then their role in that process must be fully protected in the 
federal rules.
  I am encouraged to see that the Federal courts have been taking some 
modest steps toward protecting crime victims in the Federal rules. 
Federal district court judge Paul Cassell initiated the process by 
recommending rule changes to the Advisory Committee on Criminal Rules. 
His comprehensive set of useful proposals appeared in an excellent law 
review article published in The Brigham Young University Law Review in 
2005. In recent months, the Advisory Committee has adopted a few of his 
proposals to implement some aspects of the CVRA. These changes are 
expected to take effect next year.
  These amendments are positive, but far more remains to be done. The 
Advisory Committee's six proposed amendments, five changes to existing 
rules and one new rule, do little more than reiterate limited parts of 
the statute. Crime victims have been treated unfairly in the Federal 
criminal justice system for far too long to be left to rely on a 
handful of minimal protections. To respect crime victims' rights fully 
in the process, it is necessary to take more decisive and comprehensive 
action to thoroughly amend the rules.
  When Congress passed the CVRA in 2004, it promised that crime victims 
would have rights throughout the criminal justice process. Of 
particular importance, the CVRA guaranteed that crime victims would 
have the right to be treated with ``fairness.'' My proposed amendments 
would add to the Federal rules the changes needed to treat crime 
victims fairly. These changes to the rules would provide vital 
protections for crime victims without interfering with the rights of 
criminal defendants or the need for Federal judges to manage their 
dockets effectively.
  One example of the bill's changes is the amendment to Rule 50 to 
protect the victims' right to a speedy trial. The bill would amend Rule 
50 to provide: ``The court shall assure that a victim's right to 
proceedings free from unreasonable delay is protected. A victim has the 
right to be heard regarding any motion to continue any proceeding. If 
the court grants a motion to continue over the objection of a victim, 
the court shall state its reasons in the record.''
  It is hard for me to see how anyone could object to this procedural 
change. The CVRA promised to crime victims the right ``to proceedings 
free from unreasonable delay.'' The bill would place that right into 
the Federal rules.
  Another example of the kind of change that the bill would make is its 
amendment of Rule 21 to protect crime victims' rights in transfer 
decisions. In some situations, federal courts can transfer a criminal 
case from one district to another. The bill would amend Rule 21 to 
provide: ``The court shall not transfer any proceeding without giving 
any victim an opportunity to be heard. The court shall consider the 
views of the victim in making any transfer decision.''
  It is again hard to understand how anyone could object to the 
requirement that a judge give a crime victim the chance to be heard 
before a case is transferred to a distant location. For example, the 
bill would have protected the right of the Oklahoma City bombing 
victims to present to the trial judge their views on whether the trial 
should have been transferred out of Oklahoma and, if so, to where.
  The bill does not mandate any particular substantive result, leaving 
it to the trial judge to make the ultimate determination about whether 
to transfer a case. But the bill would change the process by which such 
decisions are made, ensuring that victims are treated fairly by giving 
them an opportunity to provide their views to the judge.
  A further example of the changes in the bill is the amendment to Rule 
48 to protect the victim's right to be heard before a case is 
dismissed. The bill would provide: ``In deciding whether to grant the 
government's motion to dismiss, the court shall consider the views of 
any victims.''
  With this procedural change, the victim would have the opportunity to 
present the court any reasons why a case should not be dismissed. This 
right is implicit in the CVRA's mandate that crime victims be treated 
with fairness. It is hard to understand how a crime victim is treated 
with fairness if the court dismisses a case without considering the 
victim's position on the dismissal.
  Indeed, the only case to have considered this issue reached exactly 
this conclusion. As United States v. Heaton explains,

       When the government files a motion to dismiss criminal 
     charges that involve a specific victim, the only way to 
     protect the victim's right to be treated fairly and with 
     respect for her dignity is to consider the victim's views on 
     the dismissal. It is hard to begin to understand how a victim 
     would be treated with fairness if the court acted 
     precipitously to approve dismissal of a case without even 
     troubling to consider the victim's views. To treat a person 
     with ``fairness'' is generally understood as treating them 
     ''justly'' and ``equitably.'' A victim is not treated justly 
     and equitably if her views are not even before the court. 
     Likewise, to grant the motion without knowing what the victim 
     thought would be a plain affront to the victim's dignity. 
     U.S. v. Heaton, 458 F. Supp. 2d 1271, 1272 (D. Utah 2006).

  I agree with Heaton that the CVRA requires that crime victims have 
the opportunity to submit their views to the court on any dismissal. 
That is why this bill would place this right specifically into the 
federal criminal rules.
  One particularly important part of the bill is its change to Rule 17 
to protect the confidential and personal records of crime victims. The 
Advisory Committee itself proposed an amendment to Rule 17 to create 
specific procedures for subpoenas directed at confidential and private 
information concerning crime victims.
  This change was designed to prevent a recurrence of the problems that 
recently occurred in the Elizabeth Smart kidnapping case in Salt Lake 
City. My colleagues may remember this case, which involved the 
abduction of a teenaged girl from her home. Fortunately, she was found 
a year later and the suspected kidnapper apprehended. In the state 
criminal proceedings that followed, defense attorneys subpoenaed 
confidential school and medical records about Elizabeth. Because these 
subpoenas went directly to Elizabeth's school and hospital, she was 
never given the opportunity to object to them, and some confidential 
information was improperly turned over to defense counsel.
  The Advisory Committee has recognized that this same ``end run'' 
around the victim could occur under the federal rules. It has therefore 
adopted a rule requiring notice to crime victims before their personal 
and confidential information is subpoenaed.
  But this seeming protection has a catch: a defendant can avoid giving 
any notice to victim by arguing to a court, in an ex parte proceeding, 
that exceptional circumstances exist.

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  This kind of ex parte procedure raises serious ethical concerns. In 
fact, the American Bar Association wrote to the Advisory Committee in 
February urging it to make certain that crime victims receive notice 
and an opportunity to be heard before such subpoenas issue. As Robert 
Johnson, Chair of the ABA's Criminal Justice section explained, the 
canons of judicial ethics forbid ex parte contacts with judges on 
substantive matters. Mr. Johnson went on to urge the Advisory Committee 
to give careful consideration of the ethical violations that might 
occur from ex parte subpoenas:

       While the proposed amendment to Rule 17 is intended to 
     protect the interests of crime victims, the ABA urges the 
     Committee to carefully examine the proposal to determine if 
     the proposal regarding Rule 17 would be contrary to the 
     Court's responsibility under Canon 3(B)(7) in allowing ex 
     parte contact on a substantive matter. Even if the Committee 
     decides that it is not a substantive matter, the Committee 
     should consider whether the proposed rule would allow a 
     tactical advantage as a result of the ex parte communication 
     and the judge is required to promptly notify the other party 
     of the substance of the ex parte communication and allow an 
     opportunity to respond.

  It seems that the Advisory Committee's proposed rule permitting ex 
parte subpoenas of personal and confidential information of crime 
victims in some situations might run afoul of these ethical rules. 
Accordingly, under the bill, crime victims would enjoy an absolute 
right to notice before such information as psychiatric and medical 
records could be subpoenaed. This is the standard process that our 
adversary system of justice uses.
  The CVRA promised crime victims that they would enjoy ``the right to 
be treated with fairness and with respect for the victim's dignity and 
privacy.'' My bill would respect victims' dignity and privacy by giving 
them a court hearing before any of their confidential records could be 
turned over to an offender accused of victimizing them. This is not to 
say that such information will never be disclosed to the defense. A 
judge will have to make the determination whether disclosure is 
appropriate. But the judge would make that determination only after 
hearing from the prosecutor, defense counsel and most important of all 
the crime victim whose privacy rights are directly affected.

  One of the most significant parts of the bill is its creation of a 
new Rule 44.1, which would provide: ``When the interests of justice 
require, the court may appoint counsel for a victim to assist the 
victim in exercising their rights as provided by law.''
  This important change builds on existing Federal law. Title 28 
already permits the court in a criminal case to ``request an attorney 
to represent any person unable to afford counsel.'' For criminal cases 
involving child victims, Title 18 U.S.C. section 3509 allows the 
appointment of a guardian to represent the child's interests. Although 
the statutes provide these rights, they have yet to be actually 
implemented so that crime victims can actually take advantage of them.
  I want to be clear that I am not proposing that all crime victims 
should have counsel appointed for them. At the same time, though, I 
would think all could agree that there are situations where a trial 
court ought, as a matter of discretion, to have the ability to appoint 
legal counsel for a crime victim. For example, a crime victim might 
present a novel or complex claim that the courts have not yet 
considered. Or a crime victim might suffer from physical or mental 
disabilities as a result of the crime that would make it difficult for 
the victim to be heard without the help of an advocate.
  For many years, courts have had the ability to appoint counsel for 
potential defendants on a discretionary basis. My bill would allow that 
same, well-recognized power to be used to appoint counsel for crime 
victims.
  One last section of the bill deserves special note because it 
demonstrates the need for Congress to step into the rules process. The 
bill would amend Rule 32 to guarantee victims the right to speak at 
sentencing hearings.
  This is a change from the more limited right that the Advisory 
Committee has given victims the right ``to be reasonably heard.'' The 
Advisory Committee's note to this provision seemingly suggests that 
courts would not have to give all victims the right to speak at 
sentencing. This more limited right runs counter to the legislative 
history as to how the CVRA was to operate. While the CVRA gave crime 
victims the right to be reasonably heard, it was the undisputed 
legislative intent that victims would have the right to speak. I 
explained on the Senate floor at the time the act was under 
consideration that:

       It is not the intent of the term ``reasonably'' in the 
     phrase ``to be reasonably heard'' to provide any excuse for 
     denying a victim the right to appear in person and directly 
     address the court. Indeed, the very purpose of this section 
     is to allow the victim to appear personally and directly 
     address the court.

  My colleague Senator Feinstein remarked at that time that my 
understanding was her ``understanding as well.''
  The Advisory Committee's action also contravenes at least two 
published court decisions on this issue. In United States v. Kenna, 
Judge Kozinski wrote for the Ninth Circuit that the CVRA's legislative 
history reveals ``a clear congressional intent to give crime victims 
the right to speak at proceedings covered by the CVRA.'' And in United 
States v. Degenhardt, Judge Cassell reached the same conclusion writing 
for the District of Utah.
  My bill would provide the right of victims to speak at sentencing 
hearings. Of course, prosecutors, defense counsel, and defendants have 
on enjoyed this right. Crime victims, too, deserve the opportunity to 
speak to the court to ``allocute'' as this right is called and to make 
sure that the court and the defendant understand the crime's full harm.
  I will not take the time here to go through all of the other 
provisions of the bill. But I did want to highlight one important note 
about the appropriateness of Congress acting to amend the rules to 
protect crime victims. Congress enacted the CVRA in October 2004. In 
the almost 3 years since then, I have waited patiently to give the 
federal courts the first opportunity to review the need for rule 
changes. At the same time, though, I have made clear my position, as 
one of the cosponsors of the CVRA, that Congress expected significant 
reforms in the Federal rules. As I explained to my colleagues at that 
time, the crime victims' community in this country was looking to the 
CVRA to serve as a model for the states and a formula for fully 
protecting crime victims. It was because the CVRA was expected to have 
such a far-reaching impact that the crime victims' community was 
willing to defer, at least temporarily, its efforts to pass a 
constitutional amendment protecting victims' rights.
  I made this point directly to the advisory committee in a letter I 
sent to Judge Levi on February 15 of this year. Thus, several months 
ago, I placed the Advisory Committee on notice that, if it failed to 
act to fully protect crime victims, Congress might step into the 
breach.
  A few weeks ago, Judge Levi replied to my letter, and I greatly 
appreciate his comments and explanations. In his reply, he acknowledged 
that many of the proposals were worthy of close attention. He 
indicated, however, that the Advisory Committee was going to delay 
action on them for some indefinite period of time. The reasons he gave 
for the delay were to:

       1. gather more information on precisely how the proposals 
     would operate in specific proceedings and what effects they 
     might have, 2. obtain empirical data substantiating the 
     existence and nature of any problem or problems that could be 
     addressed by rule, and 3. provide additional time for courts 
     to acquire experience under the CVRA and to develop case law 
     construing it.

  Judge Levi also suggested that some of the proposed rule changes 
would have created, in his view, new ``substantive rights'' for crime 
victims that went beyond the CVRA.
  Judge Levi's letter demonstrates why the Rules Enabling Act wisely 
left the final decision on how to structure rules of evidence and 
procedure to Congress. The letter refers to the need to ``gather more 
information'' and ``empirical data'' on crime victims'' issues before 
proceeding. While some might point out that the Advisory Committee has 
already had more than 2\1/2\ years to collect such data, I can 
appreciate the difficulty that a court rules committee can have in 
assessing the scope of a national problem. Congress, however, is 
already well-informed on the need for protecting crime victims' rights.

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 Congress adopted the CVRA only after 8 years of legislative efforts 
and hearings on the Crime Victims Rights Amendment. This record leaves 
Congress well positioned to recognize the need for prompt and effective 
action to protect crime victims.
  The letter also refers to the need for courts to develop case law 
construing the CVRA. The problem with this approach is that the 
anticipated case law may never develop. Most crime victims are not 
trained in the nuances of the law and lack the means to retain legal 
counsel. Victims are often indigent and are frequently emotionally and 
physically harmed by the defendant's crime. They are then involuntarily 
forced into the middle of complicated and unfamiliar legal proceedings. 
To expect that in these circumstances, crime victims will often be able 
to undertake the kind of sophisticated and pathbreaking litigation that 
would be necessary to establish crime victims seems unreasonable. One 
of the main reasons for the CVRA was to change a legal culture that has 
been hostile to crime victims. To expect that this legal culture will 
somehow, on a case-by-case basis, welcome crime victims is unlikely. 
Indeed, it is ironic that while waiting for case law to ``develop,'' 
the Advisory Committee refused to add to the Federal rules a provision 
confirming the existing discretionary right of trial judges to appoint 
legal counsel for crime victims who need legal assistance on 
complicated issues.
  The wait-for-caselaw approach is also troubling because it assumes 
that Federal court litigation will serve sufficiently to clarify the 
rights of victims in the Federal system. But the Federal Rules of 
Criminal Procedure form the template for rules of criminal procedure in 
states throughout the country. One of the main purposes of the CVRA was 
to create a model for protecting victims in the criminal justice 
system. Unless the text of the Federal rules themselves protects crime 
victims, the states will not have a model they can look to in drafting 
their own rules to guarantee victims fair treatment.
  The final reason given for deferring action on rules changes is that 
the Advisory Committee thought that some of the changes might create 
new substantive rights better left to Congress. It's a bit of an 
Alphonse-and-Gaston situation: Congress says ``after you'' to the 
Advisory Committee, only to have the Advisory Committee say ``after 
you.'' To avoid an impasse that leaves crime victims unprotected, 
obviously someone needs to take the lead. That is why I am today 
introducing The Crime Victims' Rights Rules Act.
  One last provision in the bill is also worth highlighting. The bill 
includes a sense of the Congress provision that crime victims ought to 
be represented on the Advisory Committee on Criminal Rules.
  This point was called to my attention by Professor Douglas Beloof, a 
distinguished law professor at the Lewis and Clark College of Law and 
the Director of the well-regarded National Crime Victims Law Institute. 
Professor Beloof testified before the Advisory Committee in January.
  He was surprised to discover at that time that, while the Justice 
Department, the defense bar, and judges are all represented on the 
Committee, there is no representative for crime victims. Not only does 
this leave crime victims organizations without a liaison for bringing 
information to the attention of the Committee, but, more important, it 
deprives the Committee of the valuable perspective that such a 
representative could bring on the rule change issues the Committee 
regularly considers.
  With the passage of the CVRA, crime victims, no less then the Justice 
Department and the defense bar, became participants with recognized 
rights in the criminal justice process. They should, therefore, be 
represented directly on the Advisory Committee on Criminal Rules.
  When Congress passed the CVRA, it made a commitment to crime victims 
that they would no longer be overlooked in the criminal justice 
process. Nowhere is that commitment better exemplified than in the 
CVRA's promise that victims will be given ``the right to be treated 
with fairness and with respect for the victim's dignity and privacy.'' 
Until the rules governing criminal proceedings in our Federal courts 
fully protect crime victims, that important goal will not be achieved.
  I urge my colleagues to carry forward the promises made in the Crime 
Victims Rights Act. Crime victims' rights must be respected throughout 
the Federal Rules of Criminal Procedure. The Crime Victims' Rights 
Rules Act would amend the rules to ensure that crime victims are no 
longer overlooked in the federal criminal process.

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